This is Bloomberg Law with June Grasso from Bloomberg Radio. South Korea is fighting the pandemic through extensive surveillance of its citizens credit card transactions, cell phone data, and surveillance camera footage. Should the US allow this massive intrusion into our privacy to stem the pandemic? Joining me is Harold Crant, professor at the Chicago Kent College of Law. So, Harold, you have this great public health concern versus privacy concerns.
How do you balance that in this country? It's impossible to balance them well. And we saw that in the wake of nine eleven. And I view this as a kind of spectrum that there's are a pendulum that we have more privacy in times of peace, we have less privacy in times of war, and certainly this we have
a war against the pandemic. Right now remains to be seen what will happen in this country, but there has been some success with I think I could say two different types of surveillance mechanisms in other countries such as Israel, South Korea, and Singapore. And of course China is a leader of all this as well. And just to set the stage briefly, the technologies can be used first to detect people who are at risk of catching the virus.
If you take someone who is caught the virus and you look at their credit card data, if you look at their cell phone location data, one can easily create a web of contacts and alert people that may they may have been exposed. And indeed, you could take a step further, as some countries have and impose a mandatory quarantine on those people who may have received the virus. So that's the first sort of set of tools that have been used. The second set of tools that have
been used are to enforce a quarantine. Right now, we have sheltering place in in large parts of this country, but no one really knows whether those rules are being abided by. You can create a mandatory app on a cell phone that detects when people leave their quarantine. You can use location data to to ensure that they're there, and you can back that up with some kind of
surveillance cameras, facial recognition through AI and so forth. So technology does have a lot of promise both to detect people who may be exposed to the virus um but also to enforce quarantines. If we have to. But the question is is you posed in the beginning should we? Is this sort of foretel a kind of defeat of privacy in the long run those measures that you mentioned, for example, making sure that people are staying in if
they're quarantined. And in China, I know that they're acquiring people to have software on their phones that classifies each person with a color depending on their exposure to the virus. But this not only sounds like big Brother, it starts to sound should I say on American to start tracking movements to that extent, and you've mentioned about China's is sort of the the the height of AI and predictive analytics.
They look at a basic sort of set of of factors such as who you've been contacted with, what is your health, etcetera, etcetera, to forecast what kind of danger
you are of contracting the virus in the future. And based on those predictive analytics, you are as signed a color and the color allows you either some access to some government buildings or not, access to restaurants or not um And that really is very frightening because our liberties then are being conditioned based upon an algorithm, and an algorithm that may actually be faulty more times than not. Can the public do anything to stop high tech intrusions
into their civil liberties? Well, I think that the first question is we do have our constitution protections. We do have statutory protections such as hip or health information in this country, and any kind of measure that, for instance, would intrude upon or pass on our secret health information, such as the fact that we had the virus, would
be now subject to HIPPA. So Congress would have to debate this and decide to suspend HIPPA for the for the period of this pandemic um And so we'll have at least some ventilation, so to use that word, all the issues now, and the Fourth Amendment does protect, according to the Supreme Court, at least the location data of our phones, So right now we have some protection from that.
But of course, if Congress passed the statute saying in a limited emergency, we should have the ability to track self one data so we can get a better sense of the spread of the virus and then stop it, that might be a sufficient governmental interest to override the privacy interests at stake if we do that. The one thing that I would urge if I were a legislator, is to put in the bill protections for the long term.
And I have in mind I think three though of other people may have others that they would suggest, like we had with the Patriot Act about twenty years ago. Any kind of bill that it collects that information should be only valid for a short period of time and then would have to reenact it within a matter of a year or two. That's one protection. I think the data of the week we would collect, because it is such sense of data should be destroyed after a certain
amount of time. UM. So that the fear is, once you have this data, you can massage it for so many purposes. And you know, you can think about undocumented citizens and sorry, documented individuals in this country UM, who would not want to be tracked UM, and many other groups that might be politically adverse to the current government. So I think that the data might be used carefully
for to help our fight against the pandemic. But if Congress does this debate, UM, I I hope that they bake into WA the prevision provisions that they an act real protections to make sure this doesn't carry forward into a long term erosion of our civil liberties. When you look at one instance, New York has passed a law giving the governor unlimited authority to rule by executive order during a crisis. Now, any litigation about these laws are passed by states or Congress would take longer to get
through the courts, possibly than the pandemic itself. So then that may be true. And and we don't know, I mean still obviously the governor's ability to rule by executive order doesn't eliminate our civil liberties, and we do have constructs, but as a practical matter, it's difficult to get this litigation UM resolved within a quick amount of time. It's
particularly given the courts are somewhat paralyzed. UM. So we do have a risky situation here, and you can see that by looking what's happened in Israel and Singapore, UM and Hong Kong, where their vigorous civil liberties debates going on right there now. Because of those surveillance activities taken by the government, even if it's some good faith, they can make mistakes. They can lead to sort of sort
of case by case errors UM. As well as this massive trolls of information that could be used in the future for nefarious purposes. And then if you start with this, do you then risk opening the door to even more kinds of surveillance in the future post pandemic sort of like what happened, We become used to government surveillance. Uh, then we become less worried about it. And I think that's been true too, because the private sector has so
much information about us. Right if you think about what Google, Amazon, and Facebook knows about us, we become sort of a nerd to the loss of privacy. And so some people may say, look, there is no privacy anymore, they might as well let the government use it to maybe they'll do something better with it than Amazon, Rule and Facebook are doing. Right now, are there any indications that the
Trump administration is considering any of these surveillance matters. My understanding is that the CDC is now embarking upon a study of what kind of surveillance activities they can use in the States. Obviously, it's a little late here, so much of its spread already so that it's it can't be used as effectively as it has been in other countries.
But there are still some parts of this country where that kind of surveillance activities can be used quite effectively, and I know that they are looking at what other countries have done, but there have no are no concrete proposals today. I'd expect one within probably a couple of days. There's also the problem withouting of coronavirus patients and instances of outing so that people know you're your health they
know your health data. In one instance, at the very beginning of the outbreak in New York, New York City Mayor Build de Blasio posted details about the second person in New York to test positive for the virus, and the man was identified quickly as patient zero. And apparently there's a lot of that kind of outing going on in different countries. And Singapore they're posting information online about each coronavirus patient, and I think in South Korea as well,
So that's another problem. Yeah, the whole idea of confidentiality and health of information is a long important part of our culture. And we saw this with AIDS people who have contracted age about twenty years ago, and how awful it was if those names were posted in the public. Indeed, some people followed the government did that that would result
in a due process violation. We're seeing that now We saw that with the Blasio in New York, We've seen in other countries, and I do hope that at the minimum, even if this surveillance takes place, it takes place with a recognition that we can ensure some kind of privacy for those who are afflicted in their families as well. Thanks so much, Harold. That's Harold crant the professor at the Chicago Kent College of Law. Thanks for listening to
the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg